Langmede v. Weaver et al.
Valid execution of lease of land for development of gas and oil— For term exceeding three years — Attestation of two subscribing witnesses essential — Lease with one witness conveys no interest — Though admitted to record — Bights of third parties taking subsequent to such record — Import of allegations in petition seeking reformation of such lease — Instrument held legally executed in second conveyance of owner, when.
1. The attestation of two subscribing witnesses to the signature of the lessor, is as essential to the valid execution of a leáse of land for the development of oil and gas, for a term exceeding three years, as it is to the execution of a lease for a like term for any other purpose.
2. An instrument purporting to be a lease for operating land for natural gas and petroleum for a term exceeding three years, having but one attesting witness, conveys no interest in the land, is not entitled to record, and derives no efficacy from its admission to record.
3. Where possession has not been taken under such an instrument, it will not be reformed in equity, nor enforced, against a third person who acquires the title to the land by conveyance from the owner, nor against his tenant in possession, though both took subsequent to the record of such defective instrument, and with knowledge thereof.
*184. Allegations in a petition seeking the reformation of suck an instrument, that tke land was conveyed by tke owner to suck "third person who thereby acquired the title, and that his tenant entered upon and holds possession under him, fairly imports that the conveyance was by deed legally executed, and that the possession of the tenant is lawfully "held:
(Decided June 4, 1901.)
Error to the Circuit Court of Perry county.
Action to reform a lease of oil lands by supplying the signature of a witness who was present at its execution but did not subscribe his name thereto, and correcting a misdescription of the premises; and to enjoin a lessee under a subsequent purchaser from operating the lands for oil. Demurrer to petition sustained, and final judgment for the defendants. Judgment affirmed by circuit court. Affirmed.
The original action was brought by L. D. Langmede against George Weaver- and others, in the common pleas of Perry county, where final judgment was rendered against the plaintiff! who then appealed to the circuit court. In the latter court the cause was finally heard and determined -on the following amended petition:
“L. D. Langmede, plaintiff, v. George Weaver, Joseph Weaver, Henry Weaver, C. H. Ross; William H. Weaver, William Esselstein and Agnes Esselstein and Rebecca J. Devore, defendants. Amended petition.
For his cause of action herein plaintiff says:
That on the nineteenth day of February 1892, one Morgan Devore who was then the owner in fee of the following described real estate, to-wit: all that certain tract of land situated in Monroe township, Perry county, Ohio, bounded and described as follows, to-wit: Being the northeast quarter of the *19the southwest quarter of section ten (10) township twelve (12) range fourteen (14) Perry county, Ohio, containing forty (40) acres more or less; also the west half of the northwest quarter of the southeast quarter of said section, containing thirty-nine (39) acres more or less; also the west half of the northwest quarter of the southeast quarter of said section containing twenty-seven (27) acres inore or less; also the northwest quarter of the northfeast quarter of section (15) township and range aforesaid, containing forty (40) acres more or less; all of said lands being in section ten (10) and fifteen (15) township twelve (12), range fourteen (14), Perry county, Ohio; by an instrument in writing by him duly executed intended to and did grant to one C. H. Ross, his heirs and assigns, the petroleum oil and gas underlaying said lands, with the exclusive right to enter upon and occupy said lands to drill and operate for said petroleum oil and gas, and the right to take and remove said oil and gas therefrom, and the right to sublet and subdivide said land for the purposes aforesaid, and to use water from said lands (except from wells then thereon) sufficient to conduct said drilling and operating thereon, the right of way over and upon said premises to the place of operating, and the exclusive right to lay thereon pipes thereon to convey oil and gas, steam and water, and right to remove any machinery or fixtures placed thereon by said C. ’H. Ross, his heirs or assigns, together with certain other rights and privileges in said instrument specified. All of which said rights and privileges so granted were to continue in and to said C. H. Ross, his heirs and assigns, for the period of five years from said date, and as much longer as oil or gas should be found upon said premises in paying quan*20tities. Said rights and privileges were intended to be and were so granted for and in consideration of one dollar by said C. II. Ross, to said Morgan Devore then and there paid, the receipt whereof is by said Morgan Devore in and by said instrument, duly acknowledged, and also in consideration of certain covenants and agreements upon the part of said O. H. Ross, for and on behalf of himself, his heirs and assigns, in said, instrument contained. All of which said covenants and agreements together with all conditions of said grant and instrument upon the part of said C. H.Ross, to be complied with and performed, have been duly complied with and performed. Said instrument intended by said parties thereto to be executed by said Morgan Devore with all the formalities required by the laws of Ohio, in the execution of the deed conveying real estate, and the same wms accordingly duly executed and acknowledged before a notary public whose certificate of acknowledgment in due form of law, wms and is attached thereto. Said instrument wras signed by said Morgan Devore and wms delivered by him to said C. II. Ross, in the presence of two persons competent to be witnesses thereto, both of w'hom said parties to said instrument desired and intended to subscribe the same, as attesting witnesses, but by oversight and mistake of both parties to said instrument and of one of said witness, to-wlt: (one wlio did not sign) but one of said witnesses attested the execution and delivery of said instrument by subscribing thereto. Said instrumeu I; was on the 10th day of December, A. D. 1892,filed for record with the recorder of Perry county, Ohio, and wras on the 23rd day of December, 1892, duly recorded in Lease Book l,at page 87 of the Lease record of said county. On the 7th day of December, A. D. 1892, for *21a full and valuable consideration to him paid by the plaintiff, said C. H. Ross assigned and transferred to the plaintiff by writing indorsed on the back of said lease, all his right, title - and interest therein and thereto, and in and to the lands and property therein described; and said plaintiff ever since said 7th day of December, 1892, has been and still is the owner of all the rights and interest in ándito said land andproperty granted and conveyed by said instrument, and all that was intended to be granted and conveyed thereby as aforesaid by said Morgan Devore, to said C. H. Ross, his heirs and assigns. By the terms of said instrument said C. H. Ross agreed for himself, his heirs arid assigns, to complete a well for oil or gas upon said first above described parcel of said real estate within four months from the date of said instrument, unavoidable, accidents and delays excepted, and failing so to do to pay to said Morgan Devore, his heirs and assigns, the sum of $1.00 per year for each acre contained in said first above described tract of said real estate, until a well should be completed thereon. Plaintiff says that said Ross during his said ownership of said instrument and the rights and interest thereby conveyed paid said sum of $1.00 per acre per year for all the time after the expiration of four months from the date of said lease, and since said assignment thereof to plaintiff he has made said annual payment for all the periods since that date, and that said instrument is in full force and effect in law, and plaintiff is the owner thereof and entitled to all the rights and' privileges thereby intended to be granted and conveyed, and thereby granted and conveyed.
Plaintiff says that the description of said lands contained in said instrument is not in the precise words *22of the description thereof hereinbefore given, but the same lands hereinbefore described were by the parties to said instrument intended to be and were described therein, and that any uncertainties or inaccuracies in said description, as set forth in said instrument, are due to the mutual mistake of said parties thereto. The said lands are described in said instrument in the words and figures following, to-wit: all that certain tract of land situated in Monroe township, Perry county and state of Ohio, bounded and described as follows, to-wit: the northeast of the southwest quarter of section ten containing seventy (70) acres more or less. Also the balance of the land owned by the party of the first part as described below, the southwest of the southeast quarter, containing (39) acres, the west of the northeast quarter containing (27) acres, the northwest of the northeast quarter containing (40) acres, the above land laying in section ten (10) and fifteen (15) amounting in all to (176) acres. That it is provided in said instrument with respect to all of said land other than said seventy acres above described, that said«C. H. Ross, his heirs and assigns, should have the same rights and interests therein and with respect thereto as are provided, as aforesaid with respect to said 70 acres, if said C. H. Ross, his heirs or assigns should want the same. Plaintiff says that said C. H. Ross at all times, while the owner of said instrument, and of the rights, privileges and interest thereby granted and conveyed, did want, and elected to have and hold the said remainder of said premises other than said 70 acres upon the terms and conditions aforesaid; and plaintiff ever since he became the owner of said instrument, and of the rights and privileges and interests thereby granted and conveyed, has desired and has *23elected to hold the remainder of said premises upon the terms and conditions aforesaid.
Plaintiff further says that the above named defendants George Weaver, Joseph Weaver, William H. Weaver and Henry Weaver, have entered upon said premises, without the knowledge or consent of plaintiff and have drilled thereon a well for oil and gas, and are now proceeding to equip said well with tubing, casing, tanks, etc., for the purpose of taking petroleum oil from said premises, and threatens to and will, unless restrained by'this court enter into and upon said real estate and take oil therefrom and continue to take oil therefrom, and continue to operate the same for oil and gas, and take and remove the same in violation of plaintiff’s right therein, without any right or authority so to do, and this plaintiff says that if said defendants are permitted to enter upon said premises and to take and remove said oil and gas, as they threaten to and are about to do, and are permitted to operate said premises for oil and gas, that said plaintiff will suffer irreparable injury by reason thereof. That said injury will be a continuous one; that he would be obliged to prosecute a separate suit for each separate trespass upon said premises, as aforesaid, that said defendants or either of them have no considerable lot of property liable to be taken upon execution upon any judgment that, plaintiff can obtain against them for damages; that said damages would be largely in excess of all property of defendants liable to be so taken, and no sufficient relief could be obtained thereby, that this plaintiff has no adequate remedy at law, and unless said defendants are restrained by an order of this court from entering upon said promises, said plaintiff will suffer irreparable and continuing injury thereby.
*24Defendants claim the right to enter upon said lands and operate for oil and gas as aforesaid under an instrument executed since the execution and recording of said instrument hereinbefore referred to and- described, and by a person who has acquired the ownership of a part of said land since plaintiff’s said instrument was executed and recorded as aforesaid; and plaintiff says that said defendants and those under whom they claim had both actual and constructive notice of said instrument so executed by said Morgan Devore as aforesaid, and of the right, title and interest thereby granted and conveyed to said C. H. Eoss, his heirs and assigns, and of the said rights, title and interest thereby intended to be conveyed by said Morgan Devore, to said C. H. Ross, his heirs and assigns, and of the fact that any errors, inaccuracies in the description of said lands or any part thereof in said instrument were due to the mutual mistake of said Morgan Devore and said C. H. Ross, and of the fact that the omission of one of said witnesses to subscribe said instrument as an attesting witness was due to the said oversight and mistake of said parties to said instrument and said witness, and that it was intended by them to be so subscribed by said witness; and of the fact that said C. H. Ross, and plaintiff have desired and elected to hold, occupy and operate not only said seventy acres first herein above described but all of said lands, upon the terms and conditions in said instruments set forth, and of all other facts hereinbefore set forth. Since giving said lease to said Ross said Morgan Devore has departed this life, and upon bis decease said Rebecca J. Devore became the owner of said lands by descent from him. She subsequently conveyed the same to William Esselstein and the de*25fendants, George H. Weaver, Henry Weaver and William H. Weaver, claim under said William Esselstein and Ms wife, Agnes Esselstein.
Wherefore plaintiff prays that a temporary restraining order be allowed, restraining said defendants and each of them from, entering upon or operating said premises for oil and gas, and from taking and removing said product from said premises, and that upon the final hearing of this cause said injuction may be made perpetual; that said instrument may be reformed so far as necessary to make it conform to the intentions and effect the purposes of the parties thereto as above set forth; that defendants may be required to account and pay for the oil and gas taken by them from said premises, and for all other and further relief to which plaintiff may be entitled by reason of the premises.”
A general demurrer to this pleading was sustained by the circuit court, and plaintiff not desiring to amend or further plead, judgment was rendered against him, from which he has prosecuted error to this court.
John Poe and Donahue & Spencer, for plaintiff in error, cited the following authorities:
White v. Denman, 16 Ohio, 59; Van Thoniley v. Peters, 26 Ohio St., 471; Section 4106-57, Rev. Stat.; Walsh v. Ringer, 2 Ohio, 327; Cunningham v. Harper, Wright, 366; Hay v. Storrs, Wright, 711; Stahl v. Van Vleck, 53 Ohio St., 136; Broom’s Maxims, 33; Sedgwick on Stat. & Con. Law, 313; Harrison v. Leach, 4 W. Va., 383; Collins v. Buckeye State Ins. Co., 17 Ohio St., 215; White v. Denman 1 Ohio St., 110; Maher v. Hibernia Ins. Co., 67 N. Y., 283; Welles v. Yates, 44 N. Y., 525; Finch v. Hollinger, 47 *26Ia., 173; Stevens v. Murton, 6 Oregon, 193; McLaughlin v. Ihmsen,, 85 Pa. St., 364; Tryon v. Munson, 77 Pa. St., 250; Westervelt v. Voorhis, 42 N. J. Eq., 179; Hoes v. Boyer, 108 Ind., 494; Building Assc’n v. Clark, 43 Ohio St., 427; Ohio Life Ins. Co. v. Ledyard, 8 Ala., 866; Center v. Bank, 27 Ala., 743; 2 Jones on Real Prop. & Conv., Sec. 1380; Sutherland on Stat. Con., Sec. 290; Keech v. Railway Co., 17 Md., 32; Davis v. Commonwealth, 17 Gratt., 617; Wilbur v. Crane, 13 Pick., 284; Glover v. Alcott, 11 Mich., 470; Dwar. on St., 695; 1 Kent’s Com., 464; Bush v. Brainard, 1 Cow., 78; Gibson v. Jenney, 15 Mass., 205; Burnside v. Whitney, 21 N. Y., 148; Shaw v. Railroad Co., 101 U. S., 557; State v. Norton, 23 N. J. Eq., 33; Smith v. Argall, 6 Hall, 479; Burnham v. Sumner, 50 Miss., 517; Fisher v. Bidwell, 27 Conn., 363; Dewey v. Goodenough, 56 Barb., 54; Baum v. Mullen, 47 N. Y., 577; McManus v. Gavin, 77 N. Y., 36; Thompson v. Weller, 85 Ill., 197; Veith v. McMurphy, 26 Neb., 341; Connihan v. Thompson, 111 Mass., 270; Bloom v. Noggle, 4 Ohio St., 45; King v. Wilson, 6 Beav., 124; Winne v. Reynolds, 6 Paige Ch., 408; Bowler v. Electric Light Co., 10 Dec. (Re.) 582 (22 B., 136); Stroble v. Smith, 8 Watts, 280; Wilkins v. Anderson, 11 Pa. St., 399; Ingram v. Hartz, 48 Pa. St., 380; Southard v. Perry, 21 Ia., 488; Moran v. Palmer, 13 Mich., 367; Pool v. Breese, 104 Ill., 594; Test v. Larsh, 76 Ind., 452; Moore v. Roberts, 64 Wis., 538; Sewell v. Herbert., 37 La. Ann., 155; Sherman v. McKeon, 38 N. Y., 266; Carll v. Oakley, 97 N. Y., 633; Embry v. Palmer, 107 U. S., 38; Lee v. Templeton, 73 Ind., 315; Stoddard v. Cutcompt, 41 Ia., 329; Succession of Monnette, 26 La., 26; Watson v. Watwon, 128 Mass., 152; Kinzie v. Wixon, 39 Mich., 384; Steinbach v. Relief Ins. Co., *2777 N. Y., 498; Scholey v. Rew, 90 U. S. (23 Wall.), 331; Erwin v. Shuey, 8 Ohio St., 509; Stacey v. Barker, 1 S. M. & M. Ch., 112; Gallatian v. Cunningham, 8 Cow., 361; Jones on Mortgages, Sec. 1465; Starr v. Anderson, 19 Conn., 338; Maple v. Kussart, 53 Pa. St., 348; 2 Jones on Real Prop. & Conv., Sec. 1499; La Farge Fire Ins. Co. v. Bell, 22 Barb., 54; Vredenburgh v. Burnet, 31 N. J. Eq., 229; Sheffey v. Bank, 33 Fed. Rep., 315; Johnston v. Canby, 29 Md., 211; Hill v. McNichol, 76 Me., 314; Smallwood v. Lewin, 15 N. J. Eq., 60; Marston v. Swett, 66 N. Y., 206; Taylor v. Patterson, 5 Oregon, 121; Pettit v. Hamlyn, 43 Wis., 314; Hubbell v. Courtney, 5 S. Car., 87; McDonald v. Mission View Homestead Assc’n, 51 Cal., 210; Bank v. Kinner, 1 Utah, 100; Walsh v. Kattenburgh, 8 Minn., 127; Ecker v. McAllister, 45 Md., 290; Mullaly v. Holden, 132 Mass., 583; Whitney Arms Co. v. Barlow, 63 N. Y., 62; Rider Life Raft Co. v. Roach, 97 N. Y., 378; Sutherland on Con. of Stat., Sec., 300; Aldridge v. Williams, 44 U. S. (3 How.), 9; United States v. Railroad Co., 91 U. S., 72; Sutherland on Con. of Stat., Secs. 331, 332; Reg v. Watford, 9 Q. B., 635; Bradbury v. Wagenhorst, 54 Pa. St., 180; Tuxbury’s Appeal, 67 Me., 267; State v. Buchanan, Wright, 233; Allen v. Parish, 3 Ohio, 107, Tracy v. Card, 2 Ohio St., 431; Terrill v. Auchauer, 14 Ohio St., 80; Hays v. Lewis, 28 Ohio St., 326; Sloan v. Hubbard, 34 Ohio St., 583; Hauck v. State, 45 Ohio St., 439; Doll v. State, 45 Ohio St., 445; Trustees v. White, 48 Ohio St., 577; Dodge v. Gridley, 10 Ohio, 173; Northern Bank v. Roosa, 13 Ohio, 334: Hirn v. State, 1 Ohio St., 15; Jones v. Carr, 16 Ohio St., 420; State v. Franklin Co., 20 Ohio St., 421; Malone v. Toledo, 34 Ohio St., 541; State v. Railway, 37 Ohio St., 157; Stansell v. Rob*28erts, 13 Ohio, 148; Building Association v. Clark, 43 Ohio St., 427; State v. Blake, 2 Ohio St., 147; Brower v. Hunt, 18 Ohio St., 311; State v. McGregor, 44 Ohio St., 628; Jones on Mortgages, Sec. 481; Barr v. Hatch, 3 Ohio, 527; Williams v. Sprigg, 6 Ohio St., 585; Abbott v. Bosworth, 36 Ohio St., 605; N. W. Ohio Nat. Gas Co. v. Tiffin, 59 Ohio St., 420; Allegheny Oil Co. v. Snyder, 45 W. L. B., 53; 12 Ohio Fed. Dec. 220.
Tussing & Kelly; J. A. Ivers and H. D. Cocieran, for defendant in error, cited the following authorities:
Bryan on Petroleum & Natural Gas, 40, Sec. 19; Hirth v. Graham, 50 Ohio St., 57; Kelley v. Ohio Oil Co., 57 Ohio St., 317; Barringer & Adams, Law of Mines and Mining, 30 and 74; Woodland Oil Co. v. Crawford, 55 Ohio St., 161; Harris v. Ohio Oil Co., 57 Ohio St., 118; N. W. Ohio Nat. Gas Co. v. Browning, 8 C.D. 188 (15 R. 84); Strang v. Beach, 11 Ohio St., 283; Dodd v. Bartholomew, 44 Ohio St., 171; Hitesman v. Donnel, 40 Ohio St., 287; Kerr on Fraud and Mistake, (1st Ed.) 44; Williams v. Sprigg, 6 Ohio St., 585; Courcier v. Graham, 1 Ohio, 330; Patterson v. Pease, 5 Ohio, 190; Richardson v. Bates, 8 Ohio St., 257; Wilkins v. Irvine, 33 Ohio St., 138; White v. Denman, 1 Ohio St., 111; Erwin v. Shuey, etc., 8 Ohio St., 509; 20 Ency. Law, 600, Sec. 1, note 1; Carter v. Champion, 21 Am. Dec., 695; Pringle v. Dunn, 19 Am. Rep., 772; Strang v. Beach, 11 Ohio St., 283; Gasely v. Society, 13 Ohio St., 144, 20 Ency. Law, 555; Mayham v. Coombs, 14 Ohio, 128; Bloom v. Noggle, 4 Ohio St., 45; Van Thorniley v. Peters, 26 Ohio St., 471; White v. Denman, 16 Ohio, 59; Doherty v. Stimmel, 40 Ohio St., 294; Betz v. Snyder, 48 Ohio St., 492; Bundy v. Iron Co., 38 Ohio St., 300, *29312; Amick v. Woodworth, 58 Ohio St., 86; Betz v. Snyder, 48 Ohio St., 492; Dodd v. Bartholomew, 44 Ohio St., 171; Straman v. Rechtine, 58 Ohio St., 443; Bryan on Petroleum and Natural Gas, p. 40, Sec. 19; Atkinson v. Dailey, 2 Ohio, 212; 13 Ency. Law, 538; Wilson v. Chalfant, 15 Ohio, 248; Woods Statute on Frauds, 34; 1 Washburn on Real Prop., (4th ed.) 628; Woodland Oil Co. v. Crawford, 55 Ohio St., 161.
Williams, J.
The alleged lease which is the foundation of the plaintiff’s action was for a term of five years or more. Its execution by the lessor was attested by but one witness, and there are imperfections in the description of the land. The instrument, in that form, was recorded in the lease record of the proper county, but neither the lessee nor the assignee entered into the possession of the land thereunder. Subsequent to its record, one of the defendants, with notice thereof and of the plaintiff’s claim thereunder, acquired title to the land by conveyance from the owner, and gave the other defendants, having like notice, a lease of the land for the development of natural gas and oil under which they held possession at the commencement of the action. The object of the suit is to obtain the reformation of the plaintiff’s so called lease by correcting the defects referred to, and then to have it enforced against the defendants. Notwithstanding these defects are alleged in the petition as the basis of the reformation sought, it is claimed in argument by counsel for the plaintiff that witnesses to the signature of the lessor are not essential to the valid execution of a lease to operate lands for natural gas and oil, though for a term exceeding three years, and, *30therefore,, the instrument under which he claims is a valid lease conveying a legal estate in the lands, which needs no reformation in that respect. This claim is made on the ground that such leases are not within the purview of' section 4106 of the Revised Statutes, which requires that “a lease of any estate or interest in real property shall be signed by the lessor, and such signing shall be acknowledged by the lessor in the presence of two witnesses who shall attest the signing and subscribe their names to the attestation, and shall be acknowledged by the lessor” before a proper officer therein designated. The argument advanced in support of this contention is that, as the production of natural gas and petroleum by the methods now employed was unknown when this statute was enacted, leases of lands for such purposes were not then within the contemplation of the legislature, and not intended to be included in its provisions. There are other new uses in which real property has been employed since that statute was first enacted, uses unknoAvn at that time, and still others are likely to arise from time to' time in the future. The regulations prescribed by the statute for the legal execution of leases were adopted on account of the nature of the property conveyed by them, and not with respect to the character of the uses which the lessee might design to make of it. Hence, the statute was made general, so as to include, according to its express terms, leases “of any estate or interest in real property,” without regard to the nature of the lessee’s occupation or use of the same. Leases of lands for the development of natural gas and oil are not taken out of the operation of this statute, nor its requirements for their legal execution dispensed with, by the provisions of section 4132». That section relates to the *31record of such leases, and the consequences of the failure to have them recorded, but contains no provision concérning their execution. The term “lease” is used in the section in its legal sense of an instrument demising real property for a limited term upon a reserved rental, executed in conformity with the general laAV on the subject. The section being silent as to the mode of execution of such leases, their execution is controlled by, and must be in accordance with the requirements of, section 4106. Atkinson v. Dailey, 2 Ohio, 213. So that, the attestation by two subscribing witnesses to the signature of the lessor, is as essential to thé valid execution of a lease of land for the development of oil or gas,, for a term exceeding three years, as it is to the execution of a lease for a like term for any other purpose.
The defectively executed instrument on which the plaintiff founds his action is, therefore, not a lease, and has no effect or operation as such. At most it is but a contract for a lease, which, whatever other rights and obligations it may create as between the parties to it, conveyed" no estate or interest in the land, and was not entitled to record. To give effect to it as a lease for a shorter term, or as a license, would be at variance with its express covenants and conditions, and the making of a new contract with different terms to which the parties never assented. No possession was taken under it, and it acquired no force or virtue by its entry of record which it did not possess before; nor were the rights of the plaintiff, in any way, thereby enlarged. A mortgage having but one attesting witness, or otherwise defective in execution, which has been entered of record, it has been repeatedly held by this court, is not better than *32©ne properly executed that has not been recorded; and the rights of the mortgagee, as against third persons, under the former, are no greater than under the latter. In White v. Denman, 16 Ohio, 59, it was held that a mortgage with but one subscribing witness, though entered of record, could not be reformed in equity so as to defeat a subsequent judgment lien. The now well settled doctrine on the subject, which is equally applicable to leases of the character here in question, is stated by Birchard, C. J., in the opinion in that case, as follows: “This instrument was not executed agreebly to the requisition of the statute, having but one subscribing witness, and therefore, without reformation, was ineffectual to pass any interest in the land. It could not take effect as a conveyance in any sense. As between the original parties to it, there is no difficulty in making the instrument effect the intended object; for equity would regard that as done which the parties agree to do. They intended it should operate as a valid incumbrance, and so far as they are concerned, it must be treated as a sufficient mortgage. But can it be so held, against intermediate judgment liens, to the prejudice of rights acquired by third parties? To this point we must therefore turn our inquiry. It cannot for a moment be maintained, that any legal estate was passed to the mortgagee by this defective conveyance. Mayham v. Coombs, 14 Ohio, 428, and Stansell v. Roberts, 13 Ohio, 148, are authorities to show that it could, as a mortgage, have no effect without recording under the statute, and the authorities are abundant to prove, that a defectively executed deed derives no efficacy from being placed on record. Lessee of Johnston v. Haines, 2 Ohio, 55, is directly to the point. From this it results, that at the time of the *33rendition of all the judgments subsequent to the date of the defective mortgage, and prior to the filing of complainant’s bill, the claim of complainant did not affect the legal title, and did not create any equity in the land. The complainant cannot, therefore, be regarded as a purchaser of the interest then subsisting in the debtor. The most favorable light in which he can be viewed, in reference to judgment liens of third parties, is that of a party entitled by contract to have a legal lien upon the property for the security of his debt. His misfortune (perhaps his fault) is, that before he succeeded in completing his right by securing a valid lien, others more fortunate, by operation of law, have obtained vested interests in the disputed premises which interfere with him. We cannot aid him in correcting the error, which a little care would have prevented, by thrusting aside those who have equal equity, and the better legal claim. The complainant cannot be preferred to the judgment creditors, without establishing a precedent that will in effect give more efficiency, in a numerous class of cases, to a negligently executed and defective mortgage, than to one in all respects executed in compliance with law.” This decision was approved in Erwin v. Shuey, 8 Ohio St., 509, where it was held that: “An instrument intended for a mortgage, but defective because not under seal, though otherwise duly executed and recorded, creates no lien in favor of the intended mortgagee as against an assignee under a general assignment subsequently made for the benefit of creditors, although the assignee had full notice of such inténded mortgage.” In Van Thorniley v. Peters, 26 Ohio St., 471, 474, in holding that the. reformation of a recorded mortgage which had but one witness would not displace the lien of a judgment rendered between *34the date of the execution and reformation of the mortgage, it is declared to have been settled by the former decisions of the court, that: “An unrecorded mortgage, or a defectively executed mortgage, whether recorded or not, does not vest in the mortgagee any interest in the premises, either legal or equitable, as against subsequent purchasers or judgment creditors of the mortgagor.” It was held in Straman v. Rechtine, 58 Ohio St., 443, that a recorded mortgage which had not been properly acknowledged, was, after the decease of the mortgagor, subordinate to the rights of the general creditors of his estate, and that its subsequent reformation could not affect their rights. Speaking of the effect of the record of such a mortgage, Burket, J., said: “The mortgage not having been acknowledged, it Avas defective and was not entitled to record, and the record thereof was a nullity, and was notice to no one, and bound no one.” And see Betz v. Snyder, 48 Ohio St., 492.
These cases, and others that might be cited, have indisputably established the principle that, a recorded mortgage Avhich lacks some requisite of legal execution, is not available for any purpose against a third person Avho subsequently acquires the title to, or an interest in, or a lien upon the property, and that, notice by him at the time, either actual or constructive, or both, however complete it may be, of the existence and record of such mortgage, imparts no Amine or efficacy to it. 'Phis seems necessarily to result from the statute Avhich requires all mortgages of real property to be recorded, and gives them effect only from the time they are delivered to the proper officer for record. It is obviously necessary, in order to obtainthateffect, that the instrument so delivered for record, shall be a mortgage, that is, an instrument having the requisites *35of a mortgage executed as such instruments are required by law to be executed; for, if not so executed, it is not a mortgage, and does not become effective. Section 4112a of the Revised Statutes, requires that “all leases” of land for the development of natural gas or petroleum, “shall be recorded in the lease record in the office of the recorder of the proper county,” and “no such lease shall have any force or validity until the same is filed for record as aforesaid, except as between the parties thereto,” unless the person claiming thereunder is in actual and open possession of the land. This provision, it was held, in Gas Co. v. Tiffin, 59 Ohio St., 420, took such leases out of the operation of sections 4112 and 4134, and itself furnished the rule governing the registry of su ch instruments, and the effect upon their validity of the failure of registration. This provision, in that respect, it was there shown, is not substantially different from that relating to the registry of real estate mortgages and the consequences of omission to place them on record. As there said, the provision “is not less positive in its requirement that oil and gass leases shall be recorded as therein provided,” than is the statute with respect to the record of mortgages; and that, it “is even more explicit in its declaration that until properly filed for record they shall be without any force or effect except as between the parties to them, unless the person claiming thereunder is in the actual and open possession of the lands.” In vieAV of this substantial identity of these statutory regulations, the rule that had long obtained in cases of unrecorded mortgages was applied, in that case, to an unrecorded lease for operating lands for natural gas and oil; and it was accordingly held that, until such a lease is filed for record as required by *36section 4112®, it “is without any effect, either at law or in .equity, as against a subsequent lessee, or licensee, or other third person acquiring an interest in, or lien on the land, although he took with notice of such prior unrecorded lease or license, unless the person claiming thereunder was, at the time, in the actual possession of the land.” The analogy holds good throughout; and, for the same reason, the rule that defeats the operation of defectively executed mortgages that find their way on record, is applicable to leases of this nature lacking , legal execution, that are placed upon record.
In the argument some stress has been placed on the presence, in section 4133, of the phrase “executed agreeably to the provisions of this chapter,” and its absence from section 4112®. But it has not the importance which counsel have attributed to it. The “lease,” the record of which is required by the latter section, is an instrument having all the legal requisites of a lease, as well in its mode of execution, as in its terms and conditions; and unless it possesses those qualities, whatever else it may be, it is not a lease having the right of record, and its entry thereon accomplishes nothing. There can be no valid record of an invalid instrument.
The further claim is made in argument that the petition does not show the defendant Esselstein acquired the legal title to the land, nor that the other defendants obtained a valid lease from Mm. The allegations of the petition in these respects are, in substance, that the “owner” of the land “conveyed” the same to the defendant Esselstein, and the other defendants entered into its possession and are operating the same for oil and gas, under an instrument executed to them by Esselstein who had acquired its *37ownership. Since the ownership of land can only be conveyed by deed made in conformity with the law, the term “conveyed,” used in reference to the transfer of lands by the owner to another person, fairly imports that the conveyance is by a legally executed deed which transfers the whole title. To convey real estate, is to transfer the legal title to it from the owner to another by an appropriate instrument. Abendroth v. Greenwich, 29 Conn., 365. Land is conveyed only when the title to it passes. Fairfax v. Lewis, 11 Leigh (Va.), 248. A conveyance is a deed which passes or conveys land from one person to another. Brown v. Fitz, 13 N. H., 285. Jacobs, L. D. The Century dictionary defines the word “convey,” to mean in law, “to pass title by deed;” and the word “title” to mean the “ownership, absolute ownership, the unincumbered fee.” So that, the petition sufficiently shows,’ that Essel stein acquired the title to the land by legal conveyance, and that the possession of his tenants was lawfully held. Certainly, if there were imperfections in the defendáis’ title, or other facts which gave the plaintiff a superiority of right, their existence should have been pleaded in the petition.
Counsel for the plaintiff have cited the case of the Allegheny Oil Co. v. Snyder, 45 W. L. B., 53; as sustaining Ms claim to the relief demanded. The instrument there involved purports to be a lease for a term of two years, and as long thereafter as oil or gas should be found in paying quantitites; and it contained the provision that, if no well should be drilled on the land within two years from its date, is should be null and void unless the lessee should pay for further delay, a rental of one dollar per acre, at or *38before tbe expiration of each year thereafter. The execution of the instrument was attested by but one subscribing witness, and it was so recorded. After it was recorded, but before possession was taken under it, the lessor executed to another person having notice thereof, a lease of the same lands which the court finds was duly acknowledged and recorded; and possession was taken and held thereunder by the second lessee. The court gave priority" to the first lease, holding it was superior to the second, and sustained an injunction against operating the land for oil or gas under the latter. Whether the first lease should be construed to be for a definite term of two years only, and the stipulation for its continuance thereafter upon payment of the annual rental, which was entirely at the lessee’s option, as equivalent to an agreement for a renewal of the lease for a year at a time, if the lessee should choose to exercise his option, the court does not consider nor determine. If that is its proper construction, upon which we express no opinion, it might be held to come within a class of leases referred to in section 4112 of the Revised Statutes, to the valid execution of which sub-, scribing witnesses are unnecessary. The decision, however, treating the first lease as defective in its execution for lack of proper attestation, is placed entirely on the ground that, being a good contract for a lease, it created an equity in favor of the lessee which should prevail over the subsequently validly executed and recorded lease, because the latter was taken with notice of the existence and record of the former one, which, was accordingly given priority. We are unable to concur in that view. It rests wholly upon the application, to oil and gas leases, of the rule *39that obtained in equity with respect to purchasers with notice, before the enactment of our recording statutes, and which has been preserved to a limited extent by section 4134; and the only cases cited in its support, were either governed by the provision now contained in that section, or arose before the adoption of the recording act. It was established by the decision in Gas Co. v. Tiffin, supra, as has already been shown, that leases for the production of gas or oil were taken out of the operation of that section, and consequently out of the equity rule referred to, by the provisions of section 4112a, and that, withou/t a proper record of a prior lease of that kind or actual possession of the premises under it, it is nugatory and ineffectual for any purpose, both at law and in equity, as against a subsequent lessee or other third person dealing with the land, notwithstanding he had, at the time actual notice of the prior lease. And it is the purpose of the decision in the present case to establish, that a defectively executed lease of the character in question, which has been placed upon record, is in the same category as if it were unrecorded, and is equally without effect against subsequent lessees and purchasers. As we have attempted to show, it can make no difference in principle, nor according to the authorities, whether the want of a proper record results from the defective execution of the instrument, by reason of which it is not entitled to record though enterd thereon, or from the voluntary withholding of a properly executed lease from the record. In the case cited by plaintiff’s counsel, this question does not appear to have been presented to, or considered by the court, nor the Ohio cases upon the question called to its attention. However that may be, we are *40satisfied that, under our statutes, and the former decisions of this court, the facts stated in the petition of the plaintiff do not entitle him to the relief sought, and the demurrer was properly sustained.
Judgment affirmed.
Minshall. C. J., Burkkt. Spear, _ Shauck and Davis, JJ., concur.